Human Law and Divine Justice: Towards the Institutionalisation of Halakhah

This article distinguishes two models of the relationship between Human Law and Divine Justice in the Jewish tradition.
According to the (commonly assumed) “dualistic” model, human law is conceived as a separate system from divine justice, operating under delegated authority from God; according to the “monistic” model, human law is an integral part of a single system of divine justice.
I argue that the biblical sources largely presuppose the monistic model, and that traces of it survive even when rabbinic law moves significantly towards the dualistic model. I distinguish four forms of divine justice: direct, institutional, charismatic and delegated. I then relate them to the two models. I maintain that the institutional form, where God directly intervenes in human adjudicatory processes, through institutions like the oracle, ordeal or oath, is wrongly reduced (in the dualistic model) to a functional supplement to human law, because the cases in which it occurs also reflect significant divine interests. The “charismatic” form (clearly monistic) is found not only in the prophetic role (and the varying interpretations of the “prophet like Moses”) but also in the conception of the judicial role in the Bible. Survivals of the monistic model are found in criminal law, in both the “snake of the rabbis” and the procedure of Mishnah Sanhedrin 9:5(b). The latter, like the torts cases in the dinei shamayim baraita in B.K. 55b, alludes to biblical texts which evoke divine justice, and may thus be interpreted as reflecting the monistic model. A parallel argument may be applied to the institutionalisation of marriage and divorce: rather than institutions of human law, to which a separate theological significance was attached, it appears that theological models strongly influenced the very processes of their institutionalisation.